ETA & ANOR. v. DAZIE

In the High Court, the appellants then plaintiffs had claimed against the respondent (then defendant) as follows:
“(1) A declaration that the pretended Will of the deceased is invalid.
(2) An order setting aside the pretended will of the deceased for want of due execution and form and as being inconsistent and unconscionable and failing totally of its purpose and intention.
(3) An injunction restraining defendant from executing said pretended will.” At the trial in the High Court each side called three witnesses and rested its case. The main addresses of learned counsel for the parties were concluded on 29th October, 1997. On the application of learned counsel for the defendant (now respondent), the case was adjourned to the next day 30/10/97 for rejoinder (See page 68 of the record.)
In his rejoinder on points of law on 30/10/97, learned counsel for the defendant (now respondent) realized that he did not expressly deny paragraph 23 of the statement of claim nor did he plead due execution of the Will in his Statement of Defence. Learned Counsel for the respondent then made an oral application to amend the Statement of Defence in line with the evidence on record by adding that “the Will was duly executed in accordance with the law” to paragraph 33 of the Statement of Defence. Learned Counsel for the appellant opposed the oral application, arguing that there should be a formal application to enable the appellants react. He said that the application at the stage it was made would bring untold hardship to the appellants.
The learned trial Judge did not rule on the application but rather adjourned the case with the consent of both counsels to 8th December, 1997 for judgment. (See page 70 of the record.)
In the judgment eventually delivered on the 28th day of January 1998, the learned trial Judge, after exhaustive review of the case, concluded thus:
“Consequently, it is my considered opinion that the action be and is hereby dismissed for want of merit.”
Earlier in the judgment, the learned trial Judge had granted the application for amendment thus:
“I do not think that the application ought to have been formal as proposed by learned Counsel for the plaintiffs. The facts are already before the Court. I am however of the opinion that the defendant be made to pay the cost of the application which is hereby granted as prayed with N2,000,00 costs to the plaintiffs.” (See pages 98-99 of the record.)
Aggrieved by the judgment, the plaintiffs (now appellants) challenged same at the Court of Appeal, Calabar Division. The lower Court found no merit in the appeal and accordingly dismissed it. The appellants further appealed to this Court on six grounds.
In accordance with the rules and practice of the Court the parties through their counsel, filed and exchanged briefs of argument. In his brief, as amended, learned Counsel for the appellants abandoned ground one in his Notice of Appeal (which is hereby struck out) and formulated five issues from his remaining five grounds of appeal. The five issues are:
“1. Was the Court of Appeal right when it held that the evidence of the three witnesses called by the respondent was pleaded?
2. Is it the practice and in fact the Law that a party can bring an application to amend its pleadings in order to bring such pleadings in line with evidence already adduced by it but which was based (sic) upon un-pleaded facts?
3. Was the amendment sought by the respondent of such simple error or mistake that an application on notice was not necessary?
4. Was it right for the Court of Appeal to reverse a finding of fact by the trial Court which was not appealed against by the respondent?
5. What is the standard of proof required from the appellants in view of fact that the respondent did not (sic) led evidence in support of his pleadings?”